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Lucca Contracting, Inc. v. Targan

October 29, 2009

LUCCA CONTRACTING, INC., PLAINTIFF-RESPONDENT,
v.
DONALD G. TARGAN AND EDWARD DINICOLANTONIO, J/S/A., DEFENDANTS/THIRD-PARTY PLAINTIFFS-APPELLANTS,
v.
PETER DOLCY AND DUFFY, DOLCY, MCMANUS & ROESCH, THIRD-PARTY DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3590-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 16, 2009

Before Judges Axelrad, Fisher and Espinosa.

Plaintiff Lucca Contracting, Inc. (Lucca) and defendants/third-party plaintiffs Donald G. Targan and Edward DiNicolantonio (collectively, Targan) entered into a contract for Lucca to perform site work at a project known as Pine Creek Drive in Hamilton Township. Targan hired third-party defendant, Duffy, Dolcy, McManus & Roesch (DDMR), to provide certain surveying and engineering services to develop the site. Under the contract between Lucca and Targan, Targan was required to pay $224,500 in four draws. Targan paid the first and second draws but failed to pay the third and fourth draws. Targan appeals from a judgment returned against them for breach of contract and the trial court's order denying their motion to mold the verdict. We affirm.

From October 14, 2004, to February 25, 2005, Lucca provided services pursuant to the contract. The site work included clearing, excavation, pipe work, fill, road base, curbs and sidewalks. On January 12, 2005, DDMR sent Lucca a "cut sheet," which provides the contractor with the heights and locations of the elevations for the curbs and the cuts and fills in the project. William McManus, a licensed surveyor and partner in DDMR, testified that after a mistake was found in the elevation, he sent Lucca a revised, checked "cut sheet" a day later on January 13, 2005. Anthony Lucca (Mr. Lucca) claimed he never received the second cut sheet and DDMR was unable to produce documentation to prove the revised cut sheet was sent. At trial, McManus testified that one of Lucca's employees called DDMR about what appeared to be a one-foot error at one location and was told to "[w]ork it through the station." McManus stated that was done and that the construction was "pretty close to what the [January 12] cut sheet said." However, he also testified that there were many inconsistencies between the elevations built and the two cut sheets.

Mr. Lucca testified that he did not receive any notices from Targan or its engineer that the work did not conform to the cut sheet prior to the completion of the sidewalk in January 2005. He never received any notice from the township that any of the work failed to comply with applicable codes or that any of the sidewalk or curbing had to be removed. When Donald Targan inspected the work in February, he said nothing about the curb heights, the sidewalks or the space between the curbs and sidewalks.

Although Targan asked DDMR to check on the progress of the work to determine whether phases had been completed for payment, DDMR was not asked to inspect the quality of the work done by Lucca. The township provided only guidelines that required a six inch "reveal" for the curb and that the street width be thirty feet. If these guidelines were not met, the work would need to be ripped out and replaced. Peter Dolcy, a licensed engineer and partner in DDMR, testified that he calculated that 200 linear feet of sidewalk and 871 feet of curbing had to be ripped out and replaced. Donald Targan agreed with DDMR's advice. He testified that $19,597 was paid to remove 871 linear feet from the curbs and $8,624 was paid to remove 196 square yards of the sidewalk.

Mr. Lucca testified that he had trouble getting paid after the second draw. The reasons given for nonpayment were unrelated to the curb work. By way of example, Targan wanted all landscaping completed before making payment although landscaping was not included in the proposal. Mr. Lucca also testified that Targan would not pay the third draw because certain work had not been completed, although the work in question was not to be performed until the last portion of the contract.

Lucca left the job in February 2005. Mr. Lucca testified that the work left undone at that point was the base work, which had a dollar value of $33,000.

On June 9, 2005, Lucca filed a complaint seeking $97,810, the balance it claimed was due under the contract. Targan filed an answer and counterclaim as well as a third-party complaint against Peter Dolcy and DDMR.*fn1

The jury found that Targan breached its contract with Lucca; that Lucca did not breach the contract and that Lucca performed the work "according to the contract plans and in a workmanlike manner." The jury concluded that Targan owed Lucca $60,458 under the contract and that the total amount owed under the contract, including "additional reasonable compensatory damages" was $77,083. The jury also found that DDMR breached its contract with Targan "by failing [to] provide Lucca with specifications upon which [it] could rely for the installation of the concrete curb or by advising Targan to remove the concrete curb," and awarded Targan $3,000 for that breach.

After the trial, Targan filed motions for a new trial and to mold the verdict, both of which were denied by the trial court. In this ...


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